1. This is an appeal by five persons, Khoda Bux Haji (otherwise known as Khudu Haji) Sifat, Bocha, Saban and Khosal. All these five appellants were tried before the Additional Sessions Judge of the first Court, Mymen singh, sitting with a jury, for offences Under Section 147 and Section 302 read with Section 34 and Section 302 read with Section 149, I. PC. The jury acquitted the accused of the more serious charges, but unanimously convicted them Under Section 325/149 and Section 147. The learned Additional Sessions Judge sentenced all the five accused Under Section 325/149 to two and half years' rigorous imprisonment and in addition each of the four accused Sifat, Bocha, Saban and Khosal to pay a fine of Rs. 50 and in default of payment of that fine to undergo an additional term of rigorous imprisonment for a period of three months. Khoda Bux Haji was sentenced in addition to the term of rigorous imprisonment to pay a fine of Rs 200 and in default to suffer rigorous imprisonment for a further period of six months. The learned Judge in passing sentence observed that this sentence on all the accused especially on Khudu Haji should have been 'stiffer,' but he took into consideration the period they had been in prison already and in the case of Khudu Haji, his age had also been considered. No separate punishment was awarded Under Section 147.
2. When this appeal was originally opened before us Mr. Dinesh Chandra Roy who appears on behalf of all the accused, we took the view that the facts and circumstances of the case were such that if we came to the conclusion that the conviction ought to be uphold then the sentences passed on all the five accused were manifestly inadequate. We accordingly therefore took the precaution of directing that a Rule should issue calling upon all the accused to show cause why the sentences passed upon them should not be enhanced. Pending the service of that Rule the further hearing of the appeal stood over until today. Mr. Roy in arguing the appeal on behalf of all the convicted persons has directed certain criticisms against the summing up of the learned Judge. In order to estimate the value of these criticisms it is necessary that I should outline the case put forward by the prosecution.
3. It appears that the convicted man Khoda Bux Haji (who seemed to be nicknamed Khudu) is a Talukdar of some substance. He is the owner of certain Char lands. Khudu Bux Haji, after the recent death of his brother Mir Bux Haj, had been making efforts to oust the widow of Mir Bux from her rights and was trying to get possession of all the properties left by Mir Bux. It was stated on behalf of the prosecution that a third brother Parbat had been championing the cause of the widow whose name is Basiran, and in his efforts on her behalf Parbat had had the assistance of a man Shikari Dewania, who was his uncle-in-law. Shikari Dewania seems to have been a man of some position in his village. Shikari Dewania lived at a place called Amkhour Char, whereas the widow Basiran and her brother in law Khudu lived at Dakatear Char which lies on the other side of a branch of the main stream of the river Jumna. On 31st August 1931, Parbat and a man named Aasan Haji came to the house of Shikari Dewania. Parbat asked the latter to accompany them to the house of Basiran in order that certain cases which were pending between her and her brother-in-law Khudu might be compromised. In response to that invitation Shikari Dewania set out with Parbat and Asan in a boat to cross the river Jumna. After they had proceeded about half way across the river another boat ran alongside them and obstructed their progress.
4. Then one of the present convicted persons, Sifat, who was in the second boat forcibly dragged Shikari Dewania into that boat. Parbat and Asan Haji in fear made away in their own boat and left Shikari to his fate. Later on in the evening of that day, two men, Iman and Jalal who were fishing in the river near by, heard a groaning and on proceeding to investigate, they found Shikari lying near the bank mortally injured. According to the testimony given by Jalal, Shikari there and then gave an account of what had befallen him and asked to be removed to his own house. It appears that these two men were not able to carry the injured man by their unaided efforts; so they went back to the village to inform some of the relations of Shikari including some men named Kasim, Nasar, Danesh and others. These men proceeded to the spot where the injured man was lying, and then they learnt from Shikari that after Sifat had dragged him from the one boat to the other, he had been beaten mercilessly by a number of men including Sifat, Khudu, Haji and four or five others, Saban, Osman, Bocha, Khosal and Chandulla. Shikari was then taken back to his own house and a number of neighbours gathered there. Parbat and Asan Haji were called in and they were said to have corroborated all that Shikari had said by narrating what he had told them when they first found him. (His Lordship then after stating that the injured died in hospital after making a dying declaration proceeded.) Upon these facts the five persons named by Shikari were put upon their trial on the several chargas I have enumerated. It is right I think that I should add a word or two with regard to the evidence given at the trial by Dr. S.R. Das Gupta, the Assistant Surgeon at Jamalpur, who carried out a postmortem examination on the body of Shikari at about 5 p.m. on the day he died. That examination shows that there were many and very extensive bruises all over the body of the deceased man. The Medical officer testified that he had found that the whole of the left side of the chest from the collar bone down to the abdomen at the level of the umbilicus was filled with extravasated bright red blood. The muscles also were lacerated. The ribs of the left side from the fifth to the tenth were all broken. The left lung was punctured in two places and at least one rib on the right side was fractured. Extravasation of blood was found beneath all the ecchymosis and bruises. Several of the teeth were broken. Both cheeks contained extravasated blood. The left pleura was injured and also the left lung. He gave as his opinion that death was due to shock and haemorrhage causes as a result of the injuries on the chest. It is evident from the details contained in the post mortem report that this unfortunate man was to all intents and purposes battered to death. The jury however seem to have taken a somewhat perversely lenient and apparently unwarrantable view of the conduct of the accused persons and convicted them only of the less heinous offences. The appellants were in fact, surprising as it may seem, only convicted of voluntarily causing grievous hurt to the deceased man. It seems to us however that in the circumstances of this case, upon the assumption that the accused were guilty at all, they ought to have been convicted of the more serious charges laid against them and that being so, they should at least have been given the heaviest sentence allowable by the section under which they were actually convicted and therefore the maximum penalty should have been imposed.
5. The criticisms made by Mr. Roy on behalf of these convicted persons as regards the charge of the learned Additional Sessions Judge had reference mainly to two matters. The evidence in support of the case for the prosecution, it is clear, consisted almost entirely of statements made by the deceased man himself, and as the learned Judge himself puts it, 'there was only one kind of evidence in this ease' The learned Judge rightly pointed out to the jury in the course of his summing up to them that these statements were said to have been made on three occasions that is to say, (1) at the time when the injured man was discovered by Iman and Jalal, (2) later on the same evening when his relatives and neighbours gathered round him after he had been removed to his own house and (3) about noon on 1st September when the formal dying declaration was made before a duly authorized Magistrate. Mr. Dinesh Chandra Roy has argued that the learned Judge did not adequately direct the jury as to the validity and effect of declarations made by deceased persons under the provisions of Section 32, Evidence Act, particularly having regard to the terms of Section 158, of that Act, which says:
Whenever any statement, relevant Under Section 32 or Section 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
6. Mr. Roy invited us to take the view that the learned Judge did not sufficiently emphasize that aspect of the matter or call the attention of the jury to the fact that it was open to the prosecution had they been able to do so to have given more evidence than what they in fact did, by way of corroboration of the statement made by the deceased man. As regards that matter however a scrutiny of the charge to the jury discloses that the learned Judge in actual fact did discuss and at considerable length the question on the several statements made by the deceased, and in particular the declaration recorded by the Magistrate. The learned Judge as to that made this observation:
As I have already said that if the declaration is fully believed, it is sufficient to warrant a conviction without any corroborative evidence, although a piece of corroborative evidence would strengthen the probability of its being true. In the present case such corroboration is lacking. From the circumstances of the prosecution story it might be supposed that some amount of corroboration would be received from the testimoney of Parbat and Asan Haji who are alleged to have been going in the same boat with Shikari when the latter was dragged away by Sifat, Khudu Haji and others. But both Parbat and Asan Haji deny it.
7. In my opinion in that passage as well as by other observations to a like effect made by the learned Judge, he did fully and satisfactorily point out to the jury that the case for the prosecution depended on the declaration made by the dying man and that it would have been open to the prosecution to have sought to fortify that evidence if they had been in a position so to do. There is therefore, in my opinion, no substance in the criticism made by Mr. Roy upon that point. The quotation of the comments made by the learned Additional Sessions Judge concerning the evidence of Parbat and Asan Haji leads me to the second point put forward by Mr. Roy. It appears that the two witnesses just mentioned did not support the prosecution case as regards the events leading up to the death of Shikari, for in effect they stated in their evidence that it was not the fact that they were instrumental in Shikari's going with them in the boat. Their story was that they were actually waiting to cross the river when Shikari came up and ferried them across and that then they went off and so knew nothing of what happened to Shikari subsequently. The learned Judge in the exercise of his discretion allowed those two men to be treated as hostile witnesses and they were accordingly subjected to a cross-examination by the prosecution. Mr. Roy has complained that the learned Judge did not sufficiently indicate to the jury the manner in which they ought to weigh and consider the evidence of the witnesses who had been treated as hostile. But again upon a close examination of the summing up, one comes definitely to the conclusion that the learned Judge did sufficiently and properly deal with this question. His direction to the jury is as follows:
These witnesses were declared hostile and permitted to be cross-examined by the prosecution, but from this fact alone it would be wrong to think that they were telling a lie. They are alleged to have made some admissions before the other witnesses on the night of 31 August 1931 which they deny here. These admissions are not substantial evidence, but between these alleged admissions and the present denial of Parbat and Asan Haji, you have got to decide on which side the truth lies and if you think that Parbat and Asan Haji are making false statements now, that is a circumstance which would go against the accused and in favour of the prosecution.
8. Then he goes on to say:
In order therefore to test the corroboration of the dying declaration made before the Sub-Deputy Magistrate, you should consider first whether there were attempts to manufacture evidence as above, and secondly, whether the deceased made any statement at all on the preceding night and if any was made whether it was in conformity with the statement made before the Sub-Deputy Magistrate.
9. Then he says:
Here I may just point out that the mention of the five names in the first information report does not in itself prove it to have been false, because there was evidence that in the earliest statement seven names were mentioned. The dying declaration was recorded at a time when the deceased was about to expire and at that time he might have found it difficult to collect all his thoughts and to express them in words.
10. Putting the matter tersely we are clearly of opinion that the learned Judge adequately dealt with the depositions of the witnesses who were declared hostile. Clearly the value of their evidence was a matter for the jury to consider and it was for them to decide what credence, if any, they should give to it. The only other criticism put forward by Mr. Roy, of any substance, was that the learned Judge did not sufficiently put before the jury the evidence as against each of the accused persons individually. Upon this point the learned Judge said towards the end of the summing up:
It is needless to repeat that the case of each accused should be considered separately.
11. He gave added emphasis to that point by making it the last thing he said to the jury before leaving the case for their determination. Mr. Roy has urged that the learned Judge ought to have tabulated as it were the evidence and divided it into classified categories as against each of the five persons who were on their trial. But in this particular case owing to the circumstances in which the attack on the deceased man took place, all the evidence was such that it affected all the five accused persons equally or not at all. There was practically nothing to distinguish the case made by the prosecution against any one of these five persons from the case made against any other of them, except that there was the additional allegation against Sifat that he was the one who actually dragged Shikari from the boat in which he originally was into their boat and thus putting him in the hands of all the persons who subsequently beat him to death. I am therefore clearly of opinion that though generally speaking, it is desirable and indeed obligatory that a Judge in summing up to the jury should divide the evidence as it affects each individual accused, in the circumstances of the present case, we think that no injustice could have been done to any of the accused persons by reason of the manner in which the facts were put before the jury.
12.The final criticism made by Mr. Roy was to the effect that the learned Judge had nowhere in his summing up pointed out to the jury that not only were there discrepancies in the statements made by some of the witnesses in the proceedings before the committing Magistrates as compared with the evidence given by them in the Sessions Court before the jury but also discrepancies as between the statements made by some of the witnesses to the police in the course of the preliminary investigation as compared with the evidence they gave subsequently. That is in my opinion an extremely small matter. Mr. Roy candidly admitted that the statements made in the course of what he called 'Section 161 proceedings,' were in favour of the defence and were used by the defence. In those circumstances it is obvious that the whole matter must have been fully before the jury even though the learned Judge did not specifically refer to the statements made to the police.
13. Looking at the charge as a whole therefore we are entirely of opinion that no serious fault can be found with it. Certainly there was nothing put into the charge and nothing omitted from the charge which could have reasonably affected the verdict of the jury one way or the other. It must be borne in mind that this is a case where the jury have given what I may describe as a ' selective' verdict in that they were minded to pick out from a number of charges the least grave of them all and upon that and that alone convict all the five persons accused before them. That action would clearly indicate that, to put the matter no higher, the jury must have been satisfied that the deceased man did make a statement denouncing the accused and that such statement was true. If the jury had had any doubt whatever about that matter, it is obvious that they would have not only acquitted the accused of the more serious charges as they did, but would also at least have given the accused the benefit of their doubt and so have acquitted them of all the charges. If the jury had had any reasonable doubt as to the identity and complicity of the accused or any of them, it is not to be imagined for one moment that they would have hesitated to return a clean and comprehensive verdict of not guilty. It is obvious that the jury really had no doubt whatever that all the five accused persons were responsible for the death of the man Shikari and it could only have been from some perversity of mind, prejudice or pusillanimity that they acquitted them of the graver offences. I have already indicated that, in my opinion, once it was established that these five persons were responsible for the death of the man Shikari, the jury ought in law to have found the accused persons guilty on the more serious charges. We therefore take the view that the sentence passed by the learned Sessions Judge was wholly inadequate as a punishment for what the accused did.
14. I observed at the outset of this judgment that as a measure of precaution we directed a rule to be issued upon all the appellants calling upon them to show cause why the sentences passed upon them should not be enhanced by this Court, I desire to say that in my opinion it is by no means clear that any such procedure was really necessary. These five convicted persons had themselves appealed to this Court against their conviction and thus submitted themselves to the judgment of this Court. They had appeared before the Court by their advocate Mr. Dinesh Chandra Roy who, at the previous hearing was prepared to argue and had indeed commenced to argue that the conviction ought to be set aside for the reasons I have already discussed. That being the position the accused persons themselves were then before the Court and therefore in my view it was open to the Court, should it after hearing the appeal decide against the appellants, straigt away, to give to the accused persons the opportunity referred to in Sub-section (2), Section 439, Criminal PC, of being beard upon the question whether the sentence ought to be enhanced or not by calling upon the appellants in the person or their advocate to show cause there and then, why their sentences should not be enhanced, cf. Mether Ali v. Queen-Empress (1885) 11 Cal 530.
15. It is to be noted that the sub-section only requires that no order shall be made prejudicial to an accused unless he shall have had an opportunity of being heard either personally or 'by pleader' in his or their own defence. Where therefore there is already an advocate on behalf of accused persons before the Court, he as 'pleader' can put forward on behalf of the accused any answer or argument that might be available as against a projected enhancement of sentence. It would seem that there is nothing in Section 439 which requires that, when accused persons are already before the Court by their advocate or pleader, it is nevertheless still incumbent upon the Court to issue a notice to them to bring them before the Court-a second time as it were-still less to invoke the machinery of the Court in the way of issuing a rule calling upon them to show cause. Of course if the advocate or pleader representing the convicted persons were to state that he wished to consult with his clients or to take further instructions, it would only be right and proper that he should have an opportunity of so doing and an adjournment might have to be granted for the purpose. In the present case when we inquired of Mr. Roy as to what he had to say 'as the pleader'' (to use the term given in Sub-section 2) for the accused upon the question of enhancement of sentence, Mr. Roy candidly admitted that if the conviction was to be upheld then he had nothing to say on the question of sentence, and only proceeded to argue that as there was a threat of enhancement of sentence and because an opportunity, was to be given Under Sub-section (2), Section 439 to the accused persons to show cause why their sentence should not be enhanced, therefore he was entitled as representing the accused, to the further advantage of going into the whole of the evidence given before the jury at the trial and asking us to review the whole case as regards the matter of conviction, instead of being bound to limit himself to impugning the correctness of the Judge's summing up.
16. Mr. Roy's contention was that Sub-section (6), Section 439 confers upon convicted persons who availed themselves of any opportunity given them of showing cause why his sentence should not be enhanced, a right far wider than that they would have in cases where there wasmerely an appeal against conviction in the ordinary way and there was no question of enhancement of sentence. Mr. Roy contended that where there is a question of enhancement of sentence, a convicted person even though he has already failed to persuade the Court that there was such defect in the summing up of the learned Judge at the trial as to enable him to succeed in his appeal, can nevertheless proceed to claim to have the whole matter reopened and to ask this Court to put itself in the place of the jury and to review and reconsider the whole of the evidence in detail. It is to be observed that the powers of this Court on the hearing of an appeal against a conviction by the verdict of a jury are circumscribed by the provisions of Sub-section (2), Section 423, Criminal PC, which provides that:
Nothing contained in that section shall authorize the Court to alter or reverse the erdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
17. In other words if the Judge has properly and clearly put to the jury the evidence and given them a proper direction as to the law to be applied to the facts of the case so that the jury sufficiently understand the points to be considered by them, then the verdict of the jury, generally speaking, must stand, Mr. Roy has invited us to come to the conclusion that Sub-section (6), Section 439 in effect overrides Sub-section (2), Section 423 whenever there is a question of a sentence being enhanced. We cannot subscribe to that view of the matter. In our opinion that is not the law. If a question of enhancement of sentence is before the Court then the convicted person has only the same rights as regards challenging the actual conviction as he would have had if he had come before the Court by way of a regular appeal preferred by himself or by proceedings in revision instituted by himself. Therefore in all cases where the question of enhancement of sentence is before the Court, the position is just the same as if the matter had come before the Court by way of appeal or revision at the instance of the convicted person himself. If that is the correct view of the law, it follows that where a sentence has been passed after a verdict of guilty in a trial by jury the arguments on behalf of the convicted person before the appellate Court must be limited to the matters referred to in Sub-section (2), Section 423.
18. Mr. Roy relied very strongly upon the opening words of Sub-section (6) and he urged that the effect of the words 'notwithstanding anything contained in this section obliterated the plain language of Sub-section 1, Section 439 in which are incorporated Sub-sections 423, 426, 427 and 423. In my judgment that is not a correct interpretation of Sub-section (6) for the reasons I have already indicated. Mr. Roy has stated that it has been the practice of this Court or at any rate of some Benches of this Court to take a wider view of the meaning of Sub-section (6) and accordingly to allow convicted persons who are showing cause against an enhancement of their sentences to have the whole question of their conviction reopened even to the extent of asking the Court to consider for itself the whole of the evidence given at; the trial.
19. When however Mr. Roy was asked by us to cite any authority in support of that procedure he was wholly unable to-do so and he was obliged to concede that there is no judicial decision of this Court which would warrant any such procedure being followed. The utmost Mr. Roy could do in support of that part of his argument was to refer us to a Bombay case which was a criminal appeal heard in the Bombay High Court by Fawcett and Madgavkar JJ., Emperor v. Jorabhai Kisanbhai : AIR1926Bom555 . The judgment in that case however, so far from supporting Mr. Roy's contention, operates in a contrary sense and supports the view I have expressed, namely that Sub-section (6) means no more than that whenever there is a question of enhancement of sentence the convicted person must be afforded an opportunity not only of showing cause against the enhancement but also of showing cause against his conviction, but nevertheless within the limits prescribed by the provisions of Section 423. The judgment of Fawcett, J., in Emperor v. Jorabhai Kisanbhai : AIR1926Bom555 , puts the matter very clearly. Referring to Sub-section (6), Section 439, the learned Judge said:
The sub-section now allows a convicted person, to whom a notice has been given to show cause why his sentence should not be enhanced, a right of showing cause also against his conviction. This, no doubt, supports the contention that the appeal should not have been disposed of prior to the issue of a notice. In my opinion, however, importance attaches to the opening words of that sub-section 'notwithstanding anything contained in this section.' It seems to me clear that the main reason for the introduction of this sub-section was the provision in Sub-section (5) that 'where under this Code an appeal lies and no appeal is brought no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
20. Then the learned Judge says: In the case of an accused to whom a notice has been issued, and who has not appealed, or if no appeal lay, has not applied for revision of his conviction, naturally it would be contended that he could not question the correctness of his conviction, and it was in fact decided by this Court in Emperor v. Chinto (1908) 32 Bom 162, that it had been the invariable practice of the Bombay High Court, in cases that came before it for enhancement of sentence, to accept the conviction as conclusive and to consider the question of enhancement of sentence on that basis. It was presumably to overrule that view that the provisions Sub-section (6) were inserted in 1923. And that being so, it seems to me that Sub-section (6) is primarily intended to operate as an exception to what is otherwise laid down or implied in Section 439 itself.
21. It is to be observed that in this passage from the judgment of the learned Judge there is a reference to the case of an accused to whom a, notice had been issued and who had not appealed. Now in England such a situation could not have arisen because in English Criminal Procedure there is no provision for an appeal by the Crown either against an acquittal or against the adequacy of the sentence passed by the Judge at the trial. Therefore in England the question of enhancement only comes before the Court of Criminal Appeal when there has been an appeal on the part of the convicted person himself. In this country, on the other hand, it is open to the Crown to appeal against an acquittal or to move the Court in revision for an enhancement of sentence after conviction, In either event the convicted person would not be in the position of himself being an appellant before the Court or a person who had moved the Court in revision in a ease where no appeal lay. In my opinion it was to meet the situation arising in one or other of the ways just mentioned, particularly the situation which arises when the Crown moves the Court for enhancement of sentence that Sub-section (6) was added to Section 439, in order that in the event of the Crown moving for an enhancement of sentence and the convicted person being called upon to show cause why his sentence should not be enhanced, he may then at the same time have an opportunity of arguing against the correctness or propriety of the conviction itself, but only strictly within the ambit of the provisions of Section 423. That that is the correct view of the law seems to me abundantly clear from the passage in the judgment which I have just quoted.
22. Taking that view of the matter we were not disposed to allow Mr. Roy to take us through the whole of the evidence on record in the present case, though in effect he had already done so in connection with his argument in support of the actual appeal irrespectively of the question of enhancement of sentence. I should add that as regards the judgment of Fawcett, J., it would appear that when he was discussing the position of an accused to whom notice has been issued, he was only referring to those classes of oases which I have already mentioned, namely those in which a convicted person has not himself appealed or moved in revision and the matter has come before the Court either on the motion of the prosecution, that is to say, the Crown, or otherwise in the circumstances referred to in the opening paragraph of Section 439. We think that where matter has come before the Court on the motion of the convicted person himself, it may well be that it is open to the Court, if it thinks fit, there and then to give his pleader the opportunity called for by Sub-section (2) of Section 439. We are of opinion that there is no substance in the arguments put forward by Mr. Roy. On the question of sentence, we think, that having regard to the nature and extent of the injuries inflicted upon the deceased, this is obviously a case where the maximum sentence ought to be given. There could be no more grievous hurt within the meaning of Section 325, than that which was inflicted in the present case. It is impossible to conceive a more grievous hurt-one which was of such a nature as to cause the death of the victim within a few hours. We accordingly enhance the sentence on each of the four convicted persons Sifat, Bocha, Saban and Khosal to seven years rigorous imprisonment. As regards Khoda Bux Haji we take into account the fact that he is somewhat younger in age than the others and we accordingly enhance the sentence passed upon him to six years' rigorous imprisonment. The fines imposed upon all the five accused persons will stand.
M.C. Ghose, J.
23. I agree with my learned brother. Mr. Roy, on behalf of the five appellants, has placed the whole of the charge before us and pointed out what he urged as misdirection or non-direction and also invited us to consider the whole matter. I agree that in this case the charge of the learned trial Judge was on the whole a fair charge and it contained no misdirection or other error.
24. Having regard to the brutal nature of the attack upon the deceased who was abducted into a boat and there obtained such severe injuries that six ribs on the left side and one rib on the right side were broken and nearly all his teeth were broken, and there were no less than ten ecchymoses and bruises over his body, and that he died in less than 24 hours after the injuries were inflicted, I agree with my learned brother that these appellants who caused those injuries have been very leniently treated by the jury who convicted them Under Section 325 for voluntarily causing grievous hurt. In my opinion the injuries were such as were sufficient in the ordinary course of nature to cause death and in fact these five appellants were charged Under Section 302, I. PC. But the jury thought fit to convict them Under Section 325, I. PC. When the appeal was being first argued before us we were struck with the evident inadequacy of the sentence in this case and issued a rule upon the appellants to show because why the sentence should not be enhanced. Mr. Roy has argued that because the accused persons are asked to show cause against the enhancement of sentence, it gives his clients the right in this case to go behind the verdict of the jury and to show upon a consideration of the evidence that they are not guilty of the charges. Section 439(6) lays down that when a convicted person is asked to show cause why his sentence should not be enhanced, he shall in showing cause, be entitled also to show cause against his conviction. That sub-section in my opinion does not take away the force of Section 423(2) whereby in an appeal the verdict of a jury may not be reversed by the Court of appeal unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him. In my opinion in an appeal against the verdict of a jury the appellant may not go behind the verdict of the jury and argue upon the evidence that the verdict of the jury was wrong. Two cases were cited by Mr. Roy in support of his argument. On a perusal of the judgment in the case of Emperor v. Jorabhai Kisabhai : AIR1926Bom555 , it appears that it goes against the argument of Mr. Roy. There the learned Judges explained that Sub-section (c) of Section 439 was enacted so as to remove certain restrictions which were put by the previous clause of Section 439. There is no finding in that case that Clause 6 of Section 439 operates so as to restrict in any way the operation of Section 423.
25. The next case cited to us was the case of Superintendent and Remembrancer of Legal Affairs, Bengal v. Jnanendra Nath Ghose : AIR1929Cal747 . That was a case where the accused persons pleaded guilty in the Sessions Court. The learned Sessions Judge accepted their plea of guilty and gave them a light sentence. Whereupon the Local Government through the Superintendent and Remembrances of Legal Affairs, Bengal, filed a petition to this Court praying for an enhancement of the sentence passed on the accused. When the accused appeared to show cause, it was urged on their behalf that Under Section 439, Clause (6) they were entitled to show cause against their conviction and in doing so in a case where they had pleaded guilty, it was argued by their counsel that the force of Section 439, Clause (6) was to reduce the effect of Section 412, whereby it was indicated that where an accused person pleads guilty there shall be no appeal except as to the extent or legality of the sentence. It was argued in that case that the accused having been directed to show cause why the sentence should not be enhanced, the accused had the right to show cause against their conviction and could go behind the provisions of Section 412 and say that they were not guilty of the charge.
26. There was a difference of opinion between the two Judges, Mukerji, J., and Graham, J. Graham, J., held that the argument taken on behalf of the accused was not correct that their plea of guilty was conclusive and that they could not go behind the provisions of Section 412. On account of the difference of opinion the matter was referred to a third Judge.
27. Buckland, J., accepted the view of Graham, J., and enhanced the sentence of the accused on the ground that the plea of guilty taken by them was conclusive Under Section 412. In both the reported cases therefore it has been held that Sub-section (6) of Section 439 gives the accused person no more right than that when he was asked to show cause why the sentence should not be enhanced he might also show cause against his conviction. This section is intended to operate for the benefit of the accused person who otherwise would have lost his right to show cause against his conviction. I am clearly of opinion that this section does not operate so as to reduce the effect of Section 423, Clause (2). In this view I am of opinion that Mr. Roy is not entitled to go behind the verdict of the jury and argue upon the evidence. As regards the verdict of the jury, as I have stated above, there is no misdirection in the charge of the Judge and there is no material upon which we can reverse the verdict of the jury. I agree that the appeal of the five appellants should be dismissed and that the sentences passed upon them should be enhanced in the manner proposed by my karned brother.